Compliance Criteria
on Environmental Claims
Multi-stakeholder advice to support the implementation/application of the Unfair Commercial Practices Directive 2005/29/EC
Revised consolidated version - 23 July 2015
Helping consumers make informed green choices and ensuring a level playing field for business
Developed by the
Multi-stakeholder Dialogue on Environmental claims
in 2015
Disclaimer
This document has been developed by the participants to the meetings of the Multi-Stakeholder Dialogue on Environmental Claims (MDEC). It is based on a common understanding of the MDEC concerning the application of the Unfair Commercial Practices Directive 2005/29/EC (UCPD) in the area of greenwashing and misleading environmental claims.
Please note that this document cannot provide a formal interpretation of community law. In accordance with the Unfair Commercial Practices Directive and its transposition into national legislation, national courts and authorities perform a case-by-case assessment of whether a claim is misleading either in its content or in the way it is presented to consumers taking into account its impact on the average consumer's purchasing decisions.
1. Introduction
1.1. General context
In 2012, the European Commission launched a Multi-stakeholder Dialogue on Environmental Claims (MDEC) with representatives of national authorities, European business organisations, consumer associations, environmental NGOs and academics, with the purpose to:
- provide a better understanding of the use of environmental claims;
- assess the scope of the problem of misleading environmental claims;
- identify the challenges in the field of environmental claims that different stakeholders are facing i.e. in their role as enforcer, manufacturer, advertiser, consumer association, environmental NGO etc.;
- map best practices in the field of environmental claims and highlight potential areas of improvement;
- put forward recommendations.
The MDEC also aims to build a common understanding concerning the interpretation of the Unfair Commercial Practices Directive (UCPD) in this area, with a view to achieving a uniform application throughout the EU.
A report of the MDEC with the main findings and recommendations was presented at the 2013 European Consumer Summit[1]. The report provides information about the EU regulatory framework, the different challenges and best practices. It also puts forward key recommendations for the short, medium and longer term, such as the further development of the knowledge base, a revision of the most relevant EU guidance (in particular the Commission Staff Working Document Guidance on the implementation of the Unfair Commercial Practices Directive – UCPD[2]) and an active enforcement approach by Member States. Finally, it recommends businesses to follow key principles such as reliability, transparency and relevance when formulating environmental claims.
As a follow-up to the report of the MDEC, a dedicated study was undertaken on EU consumer markets and environmental claims for non-food products. The study examines the presence of environmental claims in different markets (e.g. via mystery shopping), consumer understanding and behavioural aspects, the level of compliance with EU legal requirements (in particular with the Unfair Commercial Practices Directive), and different enforcement and self-regulatory instruments in a selection of EU and third countries. The study also includes suggestions for future policy work, including on future UCPD guidance.[3]
This document, "Compliance Criteria on Environmental Claims - Multi-stakeholder advice to support the implementation/application of the Unfair Commercial Practices Directive 2005/29/EC", further builds on this work. It is the result of a consultation and discussion between the participants of the MDEC in 2014 and 2015, with a view to developing multi-stakeholder advice to be followed by businesses to support compliance with the UCPD as regards environmental claims and to improve the transparency of environmental claims. The document draws on existing guidelines on environmental claims.[4]
It serves as an input to the Commission's UCPD Guidance revision process in 2015, and will be published on the European Commission's website and presented at a possible UCPD stakeholder/Member State conference later in 2015.
1.2. The purpose of this document
The Unfair Commercial Practices Directive (UCPD) does not provide specific rules in relation to environmental claims. However, its provisions apply to all claims made in the context of business-to-consumer commercial practices, including those related to the environment. Thus, the Directive provides a legal basis to ensure that traders do not present environmental claims in ways that are unfair to consumers. As stated in Recital 10 of the Directive, it "provides protection for consumers where there is no specific sectorial legislation at Community level and prohibits traders from creating a false impression of the nature of the products".[5]
Definition of environmental claims[6]
The expressions "environmental claims" or "green claims" refer to the practice of suggesting or otherwise creating the impression (in the context of a commercial communication, marketing or advertising) that a product or a service, is environmentally friendly (i.e. it has a positive impact on the environment) or is less damaging to the environment than competing goods or services. This may be due to, for example, its composition, the way it has been manufactured or produced, the way it can be disposed of and the reduction in energy or pollution which can be expected from its use. When such claims are not true or cannot be verified this practice can be described as 'greenwashing'.
As the European Commission clarified in its UCPD Guidance Document from 2009 the application of the provisions of the Directive to environmental claims can be summarised in two main principles:
- Traders must, above all, present their environmental claims in a specific, accurate and unambiguous manner;
- Traders must have scientific evidence to support their claims and be ready to provide it in an understandable way in case the claim is challenged. [7]
This document provides a multi-stakeholder developed set of criteria which provide advice on how these two principles can be understood, with a view to supporting a uniform application of the UCPD and feeding into the review process of the UCPD guidance provided by the Commission.
The document relates to all forms of business-to-consumer commercial practices concerning the environmental attributes of goods or services. Business-to-consumer commercial practices means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of goods or services to consumers. This includes all types of statements, information, symbols, logos, graphics and brand names, and their interplay with colours, on packaging, labelling, advertising, in all media (including websites) and made by any private organisation, if engaging in commercial practices to consumers.
The overall purpose of this document is to contribute to improving the application of existing legal provisions against misleading and unfounded environmental claims and to support the provision of relevant and credible information for the benefit of consumers. Misleading claims such as false, unclear, unintelligible, or ambiguous information can result in consumers losing confidence in environmental claims and labels and in companies being discouraged from making truthful and relevant claims.
This document is aimed at providing useful information for enforcement authorities and for those traders that make self-declared claims in environmental statements, graphics or imagery. It also provides guidance to traders and enforcement authorities for any other type of environmental claims, in line with the definition set out above, including third party certification and labels.
Finally, the document is intended to help safeguard fair competition between traders, make it easier for traders to market positive environmental efforts, and counter any attempts to greenwash products. When traders follow the criteria set out in this document, the risk of being accused of greenwashing is likely to be lower than if the criteria are not applied.
It should be noted that although certain compliance criteria indicating possible misleading aspects of environmental claims are listed in Section 2 of this document, the presence of one or more of these criteria will not automatically make an environmental claim misleading. In order to decide whether a claim is misleading, it must be concretely assessed on a case-by-case basis according to the criteria laid down in Articles 5 to 9 of the UCPD. Section 3 of this document sets out a number of principles to further increase the transparency of environmental claims towards consumers, beyond the legal requirements.
2. Compliance Criteria – supporting compliance with the legislation
2.1. Content of the claim
In order not to be misleading, environmental claims should reflect a verifiable environmental benefit or improvement and this should be communicated in a precise manner to consumers.
Main environmental impacts
- When making a claim, traders should consider the main environmental impacts of the product (good or service) over its life cycle, including its supply chain. The environmental claim should relate to aspects that are significant in terms of the product’s environmental impact.[8]
Clarity on which aspects the claim relates to
- The claim should be clear and unambiguous regarding which aspect(s) of the product or its life cycle the claim refers to: the whole product, the whole company/ organisation, or specific elements such as the manufacturing process, the packaging of the product, the transportation throughout the supply chain, or specific resource efficiency aspects.[9]
Meaningful in the relevant market
- The claim should be meaningful and relevant to the environmental performance of the product and/or service and should reflect an environmental benefit beyond that which is already considered as a common practice ([10]) in the relevant market concerned.[11]
- Environmental claims should not relate to an improvement compared to a product from the same trader or a competitor that is no longer available on the market or the trader no longer sells to consumers, unless this improvement is significant and recent.
Undue transfer of impacts
- The benefit claimed should not result in an undue transfer of impacts, i.e. the creation or increase of other negative environmental impacts at other stages of the product’s life cycle should be avoided, unless it is proven that the total net environmental benefit has been significantly improved. [12]
Comparative advertising
- Directive 2006/114/EC on misleading and comparative advertising lays down the conditions under which comparative advertising is permitted. In accordance with this Directive, when traders make direct claims of superior performance to others on the market, comparisons should be not misleading (within the meaning of Articles 6 and 7 of the UCPD), and should be objective and relevant. Thus, they should compare products serving the same function and using the same methods and assumptions for comparison, and objectively compare one or more material, relevant, verifiable and representative features of those products. Moreover, where possible or practical, the basis of the comparison (e.g. energy use or use of chemicals) should be clearly stated in the claim, or alternatively in accompanying documentation published on the trader’s website.
Exceeding what is required by law
- Companies shall not make claims about aspects that are legally required, cf. No. 10 of Annex I to the UCPD.[13] Claims should always exceed what is required by legislation as a minimum.[14]
2.2. Clear and accurate presentation
Once the content of the claim has been established (section 2.1), it should be presented in a way that is accurate, clear, specific and unambiguous to ensure consumers are not misled about the intended meaning, and are thus able to make informed purchasing choices.[15]
Presentation of the product
- The wording, imagery and overall product presentation (i.e. layout, choice of colours, images, pictures, sounds, symbols or labels), should be a truthful and accurate representation of the scale of the environmental benefit, and should not overstate the benefit achieved. Even if factually correct, the way the claim is presented should not mislead the average consumer, for example by omitting material information that the average consumer needs to take an informed transactional decision.
Scope and boundaries of the claim
- The scope and boundaries of the claim should be clear from the way it is presented. It should be evident whether a claim is referring to the whole product or organisation, or just specific aspects. The particular environmental impact or process it addresses should also be clear.
Avoidance of vague, ambiguous and broad claims
- Plain language should be used that is clear and easy for consumers to understand. Traders should avoid using vague, ambiguous and broad "general environmental benefit" claims which are difficult, if not impossible, to substantiate.[16] Such claims are likely to convey the impression to consumers that a product or an activity of a trader has no negative impact or only a positive impact on the environment. Such general benefit claims presented without further qualifying language are likely to create confusion about the actual properties or benefits of individual products; they will likely be perceived as absolute statements, or recommendations concerning a product, which may not be accurate in respect of the product or a part of the product.
- In case traders choose to use general broad claims, they should be accompanied by clear and prominent qualifying language that limits the claim to a specific benefit or benefits.[17]
- Some products may be subject to detailed and ambitious rules and achieve such an excellent environmental performance that the use of a general benefit claim (presented without further qualifications) may be justified.
o This could be the case if a product is covered by a license to use the ecolabel of a publicly run ecolabel scheme (such as the Nordic Ecolabel ‘the Swan’, the German 'Blue Angel' or the European Union Ecolabel ‘the Flower’) or other robust and reputable labelling schemes subject to third party verification. [18]
o This could also be the case if the life cycle assessment studies of the product have proven its excellent environmental performance. These studies should be made according to recognised or generally accepted methods applicable to the relevant product type and should be third-party verified.[19] If such methods have not yet been developed in the relevant field, traders should refrain from using general benefit claims (on documentation and methods, see also section 2.3).
For such products, traders should nevertheless ensure transparency concerning the relevant environmental aspects, and make sure that such information is easily available to consumers, including by displaying the relevant logo.
Private labelling schemes
- If a trader or industry chooses to use own labelling schemes, symbols or certificates for marketing purposes, these labels must only be applied to the products/services or traders which meet the criteria set to qualify for use. The criteria should demonstrate clear environmental benefits compared with competing products or traders and should be easily publicly accessible. Otherwise, the labelling is likely to be misleading. Moreover, traders should consider third party verification to ensure the credibility and relevance of the label. The meaning or significance of the label must also be made clear to the consumer. Finally, such labels must not be capable of being confused with other labels, including, for example, labels of publicly run labelling schemes or schemes of competitors.